RILEY, J.
This is an appeal from an order sustaining demurrers to and dismissing separate petitions by plaintiffs in error to vacate a judgment. '
On July 22, 1940, Fred O. Turner, defendant in error herein, commenced
suit to quiet title to 80 acres of land in Pottawatomie county. Numerous persons were made parties defendant, including plaintiffs in error herein, H. W. Metzger and Elsie Nash. In that suit, Fred O. Turner alleged that he was the owner of the land and was in possession thereof. He did not deraign his title. On November 19, 1940, judgment was entered in that suit finding and decreeing that plaintiff was the owner and in possession of the surface rights of the land; that plaintiff, and three of the defendants who had appeared, owned the mineral interests therein, and that all other defendants, including Metzger and Nash, who had been duly served with summons, were in default and had no interest in the land. The decree quieted title in plaintiff as against all nonappearing defendants, including Metzger and Nash.
More than one year, but less than two years, thereafter, defendants H. W. Metzger and Elsie Nash filed in said cause their, separate, verified petitions seeking vacation of the judgment. Metzger alleged that he owned an undivided 1/8 interest in the mineral rights in and under said land, and Nash alleged that she owned an undivided 1/12 interest in both the surface.and mineral rights. They assert, substantially on the same ground, that the judgment and decree is void because the claim of title by Turner was based solely upon a certificate tax deed from the county treasurer, dated May 1, 1940, and that said tax deed is void oh its face for the reason that it recited that on November 7, 1932, the county treasurer sold said land for the taxes levied thereon for the year 1932; that the taxes for the year 1932 were not delinquent and therefore the county treasurer was wholly without authority to sell said land for taxes on November 7, 1932. The petition also alleges that the tax deed was void for lack of notice of intention to apply to the county treasurer for the deed. They further alleged that the judgment sought to be vacated was void on account of alleged: false allegation that plaintiff was in possession of the land and that he had no title thereto and knew that he had no title thereto, and that he falsely alleged that he was in possession in order to avoid joining an action in ejectment in which he would have been required to deraign his title, and that he knew if he did so, it would reveal the invalidity of his tax deed, and that his false allegations of ownership and possession were made to deceive and mislead the court and to induce the court to assume jurisdiction of a cause of action to quiet title, and that plaintiff, in procuring said judgment, intentionally and fraudulently' withheld from the court the true facts with reference to his claim of ownership and lack of possession, and that the false allegations of ownership and possession and. the subsequent false proof in support thereof constituted a fraud upon the court and resulted in an unjust judgment which would not have been rendered except for said fraudulent acts. A copy of the Turner ' petition and the judgment sought to be vacated were attached to each of the petitions to vacate. Metzger and Nash each submitted a proposed answer which stated a good defense to Turner’s petition and each tendered the taxes necessary to redeem .the land from the tax sale.
. Both petitions are silent as to whether petitioners were served , with summons in Turner’s, action to quiet title and make no allegations as to why they did not appear and defend the action to quiet title. Neither petition alleged that the findings.of the court, in the suit tp quiet title, that defendants: “. . . .H,,.1$í. Metzger . . . _apd Elsie Nash . .were duly and legally served.with summon^, all according to law,” and: “that each and .both of them should be adjudged in' default,” were untrue.
Turner filed separate demurrers- to said petitions to vacate.' The- two demurrers were sustained. Metzger ánd Nash announced that they would stand on their respective petitions, whereupon the petitions wer e-dismissed and defen
dants Metzger and Nash appealed. The order of dismissal recites, as a part of the record, that petitioners were served with summons in the case and were in default at the time judgment was entered. The assignment of error is that the court erred in sustaining the demurrers.
The principal contention is that a court does not have jurisdiction to quiet title on behalf of a plaintiff who is not in possession unless he couples with his cause of action to quiet title a cause of action in the nature of ejectment and therein deraigns his title.
“Every court of general jurisdiction has power to determine whether the conditions essential to its exercise exist.” 14 Am. Jur. 368.
Whether a court has jurisdiction of the subject matter depends, in part, upon the allegations of the petition. Power to determine jurisdiction depends upon the allegations and not upon the facts. Watts v. Gerking et al., 111 Ore. 641, 228 P. 135, 34 A.L.R. 1489.
The allegations of the petition must be taken to be true in determining whether the court has jurisdiction of the subject matter. Malden Trust Co. v. Brooks et al., 276 Mass. 464, 177 N. E. 629, 80 A.L.R. 1028.
If the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches. 14 Am. Jur. 365. In this case the record affirmatively shows that the plaintiff, Turner, in his suit to quiet title, alleged that the land was located in Pottawatomie county, describing it, and that he was the owner and in possession of the land. The judgment recites that the court examined the pleadings and heard the evidence, and being fully advised in the premises, found that the plaintiff, Fred O. Turner, was the sole owner and in possession of all the surface of the premises described in the petition and that he and three others named therein were the owners of the undivided mineral interests in said land. It therefore appears that the issue of possession of the land was before the court. That issue was judicially determined upon the pleadings and evidence introduced in that action. Plaintiffs in error had opportunity to controvert the allegations of possession and ownership, but failed to do so. Had they done so, they could have asserted, as a defense, every fact and condition upon which they now rely to vacate the judgment. The alleged fraud now asserted by plaintiff in error as invalidating the judgment did not prevent them from making defense in that suit.
In Thigpen v. Deutsch et al., 66 Okla. 19, 166 P. 101, it is held:
“False evidence or perjury alone, relative to an issue tried, is not a sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to’ vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the attacked judgment was rendered; it must be such fraud of the prevailing party as to prevent the other from having a trial of the issues.”
In McBride v. Cowan, 90 Okla. 130, 216 P. 104, it is held:
Free access — add to your briefcase to read the full text and ask questions with AI
RILEY, J.
This is an appeal from an order sustaining demurrers to and dismissing separate petitions by plaintiffs in error to vacate a judgment. '
On July 22, 1940, Fred O. Turner, defendant in error herein, commenced
suit to quiet title to 80 acres of land in Pottawatomie county. Numerous persons were made parties defendant, including plaintiffs in error herein, H. W. Metzger and Elsie Nash. In that suit, Fred O. Turner alleged that he was the owner of the land and was in possession thereof. He did not deraign his title. On November 19, 1940, judgment was entered in that suit finding and decreeing that plaintiff was the owner and in possession of the surface rights of the land; that plaintiff, and three of the defendants who had appeared, owned the mineral interests therein, and that all other defendants, including Metzger and Nash, who had been duly served with summons, were in default and had no interest in the land. The decree quieted title in plaintiff as against all nonappearing defendants, including Metzger and Nash.
More than one year, but less than two years, thereafter, defendants H. W. Metzger and Elsie Nash filed in said cause their, separate, verified petitions seeking vacation of the judgment. Metzger alleged that he owned an undivided 1/8 interest in the mineral rights in and under said land, and Nash alleged that she owned an undivided 1/12 interest in both the surface.and mineral rights. They assert, substantially on the same ground, that the judgment and decree is void because the claim of title by Turner was based solely upon a certificate tax deed from the county treasurer, dated May 1, 1940, and that said tax deed is void oh its face for the reason that it recited that on November 7, 1932, the county treasurer sold said land for the taxes levied thereon for the year 1932; that the taxes for the year 1932 were not delinquent and therefore the county treasurer was wholly without authority to sell said land for taxes on November 7, 1932. The petition also alleges that the tax deed was void for lack of notice of intention to apply to the county treasurer for the deed. They further alleged that the judgment sought to be vacated was void on account of alleged: false allegation that plaintiff was in possession of the land and that he had no title thereto and knew that he had no title thereto, and that he falsely alleged that he was in possession in order to avoid joining an action in ejectment in which he would have been required to deraign his title, and that he knew if he did so, it would reveal the invalidity of his tax deed, and that his false allegations of ownership and possession were made to deceive and mislead the court and to induce the court to assume jurisdiction of a cause of action to quiet title, and that plaintiff, in procuring said judgment, intentionally and fraudulently' withheld from the court the true facts with reference to his claim of ownership and lack of possession, and that the false allegations of ownership and possession and. the subsequent false proof in support thereof constituted a fraud upon the court and resulted in an unjust judgment which would not have been rendered except for said fraudulent acts. A copy of the Turner ' petition and the judgment sought to be vacated were attached to each of the petitions to vacate. Metzger and Nash each submitted a proposed answer which stated a good defense to Turner’s petition and each tendered the taxes necessary to redeem .the land from the tax sale.
. Both petitions are silent as to whether petitioners were served , with summons in Turner’s, action to quiet title and make no allegations as to why they did not appear and defend the action to quiet title. Neither petition alleged that the findings.of the court, in the suit tp quiet title, that defendants: “. . . .H,,.1$í. Metzger . . . _apd Elsie Nash . .were duly and legally served.with summon^, all according to law,” and: “that each and .both of them should be adjudged in' default,” were untrue.
Turner filed separate demurrers- to said petitions to vacate.' The- two demurrers were sustained. Metzger ánd Nash announced that they would stand on their respective petitions, whereupon the petitions wer e-dismissed and defen
dants Metzger and Nash appealed. The order of dismissal recites, as a part of the record, that petitioners were served with summons in the case and were in default at the time judgment was entered. The assignment of error is that the court erred in sustaining the demurrers.
The principal contention is that a court does not have jurisdiction to quiet title on behalf of a plaintiff who is not in possession unless he couples with his cause of action to quiet title a cause of action in the nature of ejectment and therein deraigns his title.
“Every court of general jurisdiction has power to determine whether the conditions essential to its exercise exist.” 14 Am. Jur. 368.
Whether a court has jurisdiction of the subject matter depends, in part, upon the allegations of the petition. Power to determine jurisdiction depends upon the allegations and not upon the facts. Watts v. Gerking et al., 111 Ore. 641, 228 P. 135, 34 A.L.R. 1489.
The allegations of the petition must be taken to be true in determining whether the court has jurisdiction of the subject matter. Malden Trust Co. v. Brooks et al., 276 Mass. 464, 177 N. E. 629, 80 A.L.R. 1028.
If the pleadings state a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches. 14 Am. Jur. 365. In this case the record affirmatively shows that the plaintiff, Turner, in his suit to quiet title, alleged that the land was located in Pottawatomie county, describing it, and that he was the owner and in possession of the land. The judgment recites that the court examined the pleadings and heard the evidence, and being fully advised in the premises, found that the plaintiff, Fred O. Turner, was the sole owner and in possession of all the surface of the premises described in the petition and that he and three others named therein were the owners of the undivided mineral interests in said land. It therefore appears that the issue of possession of the land was before the court. That issue was judicially determined upon the pleadings and evidence introduced in that action. Plaintiffs in error had opportunity to controvert the allegations of possession and ownership, but failed to do so. Had they done so, they could have asserted, as a defense, every fact and condition upon which they now rely to vacate the judgment. The alleged fraud now asserted by plaintiff in error as invalidating the judgment did not prevent them from making defense in that suit.
In Thigpen v. Deutsch et al., 66 Okla. 19, 166 P. 101, it is held:
“False evidence or perjury alone, relative to an issue tried, is not a sufficient ground for vacating or setting aside a judgment; the fraud which will authorize the court to’ vacate a judgment must be extrinsic or collateral to the issues tried in the cause wherein the attacked judgment was rendered; it must be such fraud of the prevailing party as to prevent the other from having a trial of the issues.”
In McBride v. Cowan, 90 Okla. 130, 216 P. 104, it is held:
“Where a suit is brought in equity upon the aforesaid grounds, and the prayer is to nullify and make void a default judgment obtained by perjury of plaintiff on intrinsic issues, the following burdens are upon the party seeking such relief, to wit: He must show himself free of laches and negligence, or show a valid excuse for his laches; he must show he has a valid defense; that the alleged perjury was in fact committed and that upon such perjury the judgment was obtained. It is essential that each of such burdens be discharged before a judgment will be vacated and held void.”
In the opinion it is said:
“. . . The party seeking to vacate the default judgment against him must show himself free of laches and negligence, or conclusively show that such laches was unavoidable. A willful and negligent disregard after service of summons will in no case be excused.
The verity of a judgment of a court of record is of greater weight and import than the merely asserted rights of an individual, whose conduct is tainted with laches and negligence, and whose grounds for relief are uncertain.”
Oklahoma Union Insurance Co. v. Morgan, 168 Okla. 228, 32 P. 2d 285, holds the same as Thigpen v. Deutsch et al., supra.
Stout v. Derr et al., 171 Okla. 132, 42 P. 2d 136, is a case similar in most respects to the instant case, though in that case the petition to vacate did attempt to excuse petitioner’s failure to appear and contest the judgment sought to be vacated. Therein it is held:
“Such fraud as will justify the court in vacating a judgment must be extrinsic, extraneous, and collateral to the issues tried in the cause wherein the judgment was rendered, and such as to have prevented the unsuccessful party from having a trial of the issues.”
The general rule is that the authority to set aside judgments, after the term time, for fraud, is limited to cases where the fraud complained of was practiced in the very act of obtaining judgment, and all acts of fraud which might have been used as a defense to defeat the action are excluded; the fraud must be extrinsic and collateral to the matter tried and not a matter which was actually or potentially in issue in the action unless the interposition of such defense was prevented by the fraud or the act of the other party. 34 C.J. 280. An allegation of fact known to be false and the establishment of such fact by testimony, also known to be false, do not constitute fraud authorizing proceedings to set aside a judgment. Hedrick v. Smith & Reed, 137 Iowa 625, 115 N.W. 226. There, as here, the alleged false allegations and false testimony relied upon were as to the ownership of the property involved. In the opinion the court said:
“The allegation and proof as to this essential fact, and the legal conclusions drawn therefrom, were therefore intrinsic, that is, necessarily involved in the action itself, and it is now well settled in this court that even an allegation of a fact known to be false, and the establishment of that fact by testimony also known to be false, do not afford sufficient ground for setting aside a judgment on the ground of fraud.”
In Electric Plaster Co. v. Blue Rapids City Tp., 81 Kan. 730, 106 P. 1079, it is said:
“The general rule is that an act for which a court of equity will set aside or annul a judgment between the same parties rendered by a court of competent jurisdiction has relation to fraud extrinsic or collateral to the matter tried by the first court, not to fraud in the matter on which the judgment was rendered. . . . By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy.”
The general rule is that a petition to vacate a judgment filed after term time must show by specific averment that petitioner has not been in fault and that he has exercised due diligence and vigilance. 34 C.J. 329.
The petitions to vacate show upon the face thereof that the alleged false allegations and false testimony relied upon as fraud were intrinsic matters going to the actual or potential issues in the original suit and were in no sense extrinsic or collateral matters; both petitions fail to set up any excuse for petitioners’ failure to appear and defend, and wholly fail to allege any act or conduct of the plaintiff preventing petitioners from appearing and asserting their rights. The petitions fail to state a cause of action. A policy in law is that every citizen may have one complete trial before a competent tribunal which shall end the controversy in a valid judgment, final to the extent that it is reversible only for errors of record.
Affirmed.
GIBSON, C.J., and OSBORN, BAY-LESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. HURST, V.C.J., dissents.